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Title IX Training SOUTH DAKOTA BOARD of REGENTS M Northern?~ University SOUTH DAKOTA MINES'" 1 Title IX Training Requirements

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Title IX Training SOUTH DAKOTA BOARD of REGENTS M Northern?~ University SOUTH DAKOTA MINES' DAKOTA STATE SOUTH DAKOTA Black Hills UNIVERSITY® STATE UNIVERSITY State University UNIVERSITY OF SOUTH DAKOTA Title IX Training SOUTH DAKOTA BOARD OF REGENTS m northern?~ university SOUTH DAKOTA MINES'" 1 Title IX Training Requirements Who Must Be Trained: Institutional Title IX Coordinator(s), investigators, decision-makers (including those responsible for an institution’s determination and those responsible for handling appeals), and any person responsible for facilitating informal resolutions Training Topics Must Include: Title IX’s definition of “sexual harassment” The scope of an institution’s “education activity or program” How to conduct an investigation and grievance process (including hearings, appeals, and informal resolutions) How to remain impartial, including avoidance of prejudgment of the facts, conflicts of interest, and bias For decision-makers: Issues of relevance of questions and evidence, including when questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant. How to use any technology utilized at live hearings For investigators: Issues of relevance in order to create an investigative report that fairly summarizes relevant evidence 2 Title IX Background Passed in 1972, with limited rule-making in 1975. Court decisions interpreted parts of the Act through the 1980s and 1990s. Until 2017, the Office for Civil Rights (“OCR”) commonly relied on policy guidance to establish requirements for a school’s response to sexual harassment Dear Colleague Letters Q&A documents 3 New Title IX Rules 2018: US DOE published a Notice of Proposed Rulemaking to address sexual misconduct under Title IX May 6, 2020: DOE released the new Title IX regulations The final rules followed a preamble that summarized, discussed, and responded to more than 124,000 comments received during the comment period. The final regulations are found at 34 C.F.R. pt. 106. August 14, 2020: New Title IX regulations went into effect BOR revised and passed Board policies in alignment with the new regulations that also became effective August 14, 2020. BOR Policies 1:17, 1:17.1, 1:18, and 3:4. 4 Substantive Changes to BOR Policy Adds key terms and changes some existing definitions Emphasizes impartiality and prohibits bias, conflicts of interest, and prejudgment of facts Changes the scope of conduct under Title IX jurisdiction Alters the standards for an institution’s response and liability Confidentiality requirements Ensures constitutional protections for involved parties Includes rape shield protections Prohibits “gag orders” 5 Procedural Changes Reporting Notice requirements Supportive measures Informal resolutions Prescriptive grievance process Investigations Hearings Appeals Training 6 Bias and Conflicts of Interest Title IX personnel (Title IX Coordinators, investigators, decision-makers, persons designated to facilitate informal resolutions) cannot have conflicts of interest for or against complainants or respondents generally, or for a complainant or respondent individually. Existence of bias should be based on a reasonable person standard. Types of bias to be aware of and avoid: Sex-stereotypes as evidence. Prior affiliations as evidence. Evaluating bias based on outcomes. 7 Avoiding Bias and Conflicts of Interest Treat complainants and respondents equitably. Respondent is presumed not responsible until the grievance process determines otherwise. Avoid using stereotypes in training materials, policies, and procedures. Remain impartial and avoid prejudgment of the facts at issue. Treat parties as individuals, not as members of a class. Abide by the relevancy standards when examining evidence. Ensure both parties are provided the opportunity to review and present evidence, including witness testimony. 8 BOR Policy Definitions Actual Knowledge: Notice of sexual harassment or allegations of sexual harassment to a Title IX coordinator, any employee with the authority to institute corrective measures, or any employee at the Special Schools. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only employee of the institution with actual knowledge is the respondent. BOR Policy 1:17.B.1. Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment. 1:17.B.2. 9 BOR Policy Definitions Consent: Consent may be implied from the facts and circumstance surrounding the commission of an act. Consent will not be found where an act has been done through the use of force, coercion, of threats of immediate and great bodily harm. Submission does not equal consent, and to establish consent, a party charged must utterly negate any element of force, coercion, or threat. Consent, once given, may be retracted. Consent will not be found under any of the following circumstances: If the victim is less than thirteen years of age; or Through the use of force, coercion, or threats of immediate bodily harm against the victim or other person within the victim’s presence, accompanied by apparent power of execution; or If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or If the victim is incapable of giving consent because of any intoxicating, narcotic, or anesthetic agent or hypnosis; or If the victim is thirteen years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim. 1:17.B.3; 1:17.1(3)E. 10 BOR Definitions Education Program or Activity: Any locations, events, or circumstances taking place in the United States where the institution exercised substantial control over both the respondent and the context in which the alleged violation occurs—including locations that correspond to land, buildings, facilities, and other property in the possession of, or owned, used, or controlled by the institution, and adjacent streets and sidewalks. For purposes of BOR Policy 1:17, the term also includes any building owned or controlled by a student organization that is officially recognized by the institution. 1:17.B.5. 11 Education Program or Activity Includes all incidents of sexual harassment occurring on an institution’s campus. Includes off-campus incidents under certain conditions: If an institution exercises substantial control over both the respondent and the context of the alleged sexual harassment. If the alleged sexual harassment occurs at an off-campus building owned or controlled by a student organization recognized by the institution (i.e. a fraternity or sorority). If an incident involves members of a student organization recognized by the institution, but does not take place at the organization’s building or property, the incident should be reviewed in the same manner as an off-campus incident: whether the institution exercised substantial control over the respondent and the context of the alleged harassment. 1:17.B.5; p. 30197. 12 Education Program or Activity What constitutes “substantial control”? Multiple factors, such as whether the institution funded, promoted, or sponsored the event or circumstance in which the alleged harassment occurred, should be considered but no single factor is determinative. p. 30197. The preamble to the updated regulations notes that statutory and regulatory definitions of “program or activity” encompass “all of the operations of” institutions, and such “operations” may include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of an institution, such that certain online harassment may fall within the scope of Title IX. p. 30202 (citing 20 U.S.C. 1687; 34 CFR 106.2(h)) 13 BOR Definitions Formal Complaint: A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the institution investigate the allegation of sexual harassment. 1:17.B.6. Respondent: An individual that has been reported to be the perpetrator of conduct that could constitute a violation of BOR Policy 1:17. 1:17.B.8. 14 BOR Definitions Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following: An employee of an institution conditioning the provision of education benefits on participation in unwelcome sexual conduct (i.e. quid pro quo); or Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the institution’s education program or activity; or Sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA), the definitions of which are provided in BOR Policy 1:17.1. 1:17.B.9. 15 Other Key Terms Supportive Measures: Non-disciplinary, non-punitive individualized services offered to a complainant or respondent. 1:17.B.10. Deliberately Indifferent: A manner or response that is clearly unreasonable in light of the known circumstances. 1:17.C.2.; 1:17.C.10.2. Preponderance of the Evidence: The standard for determining responsibility. A preponderance of the evidence indicating responsibility is shown if, in considering all the evidence, it is more likely than not that the respondent is responsible for the alleged conduct. 1:17.C.2.2.9. 16 Required Notices Designated Title IX Coordinator Policy Contents Complaint
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